United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND (DOCS. 47 & 55)
SANDRA M. SNYDER, Magistrate Judge.
Before the Court in the above-styled and numbered cause of action are "Plaintiff David Shayne Heine's Motion for Leave to File a Fourth Amended Complaint, " filed July 31, 2014 (Doc. 47), and "Plaintiff David Shayne Heine's Supplemental Brief in Support of His Motion for Leave to File a Fourth Amended Complaint, " filed November 5, 2014 (Doc. 55). In these, Heine requests leave to amend his Third Amended Complaint. The matter is before the Court on the parties' cross-briefs, which were submitted without oral argument to the undersigned United States Magistrate Judge. The Court has jurisdiction over these actions under 28 U.S.C. § 636(b)(1)(A), and the matter is ripe for review.
"Leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, ' and should be granted more liberally to pro se plaintiffs." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citing Lopez v. Smith, 203 F.3d 1122, 1130, 1131 (9th Cir. 2000) (en banc)), cert. denied, 541 U.S. 1063 (2004). However, "[i]t is not an abuse of discretion to deny leave to amend when any proposed amendment would be futile." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990).
"Leave to amend may be denied if a court determines that allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency, '" Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)); see Lacey v. Maricopa County, 693 F.3d 896, 939 (9th Cir. 2012) (en banc) (stating that facts alleged in an amended complaint "must not be inconsistent with those already alleged" in the original pleading) (citing Reddy, 912 F.2d at 296-297).
Plaintiff seeks leave to amend his complaint in order to assert three additional causes of action against "All Defendants" under the Federal Tort Claims Act ("FTCA"). These new claims are (1) Intentional Infliction of Emotional Distress, (2) Negligent Infliction of Emotional Distress, and (3) Conversion.
Defendants assert that amendment is futile because Plaintiff's proposed additional claims would be subject to immediate dismissal on the basis that the Court lacks subject matter jurisdiction. The Court agrees.
A claim in a proposed amended complaint is futile if it would be immediately "subject to dismissal" pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim on which relief may be granted. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). A court also may deny leave to amend if it cannot acquire jurisdiction over the proposed new claims. See, e.g., Union P. R.R. Co. v. Coast Packing Co., 236 F.Supp.2d 1130, 1137 (C.D. Cal. 2002) ("[A]mendment would be futile in light of our conclusion that we lack jurisdiction...."); Garcia, 2012 U.S. Dist. LEXIS 14154, 4-5 ("Amendment is futile if the proposed amended complaint does not establish a court's subject matter jurisdiction over the action."). The Court finds at least two reasons why amendment would be futile here.
I. FTCA Claims
The FTCA is the exclusive remedy for tortious conduct by the United States, and it only allows claims against the United States. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998). It is within the Court's discretion to deny leave to amend a complaint for the alleged torts because the United States and its agencies are immune under the Federal Tort Claims Act (the "FTCA"). See Sylvia Landfield Trust v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013) (holding that it is not an abuse of discretion to deny leave to amend where the district court could reasonably conclude that further amendment would be futile).
Heine's proposed additional claims would be subject to immediate dismissal because, under the FTCA,  it is well settled that the United States is the only proper defendant in an FTCA suit. See, e.g., Craft, 157 F.3d at 706 ("The FTCA is the exclusive remedy for tortious conduct by the United States, and it only allows claims against the United States ") (emphasis added); Kennedy v. United States Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) ("Because the United States is the only proper party defendant in an FTCA action, the district court correctly dismissed her complaint against the Postal Service and [the Postmaster General];" Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) ("[T]he United States is the only proper defendant in a [FTCA] action."); Woods v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983).
Heine seeks to impose liability in tort against "All Defendants" named in the pleading: the Secretary of Agriculture, the United States Department of Agriculture ("the USDA"), the FSIS, numerous USDA employees, and Does 1-100 (together, "the Defendants"). See PFAC at pp. 1, 10-11. These Defendants are not the United States. As such, the Court finds there are grounds for immediate dismissal as against these improper defendants. See, e.g., Lance, 70 F.3d at 1095 (holding that district court properly dismissed action against Doe defendants because "[t]he United States is the only proper defendant in an FTCA action"); Gaede v. United States Forest Serv., 2013 U.S. Dist. LEXIS 3561, * 19 (E.D. Cal. Jan. 9, 2013) (because United States is the only proper defendant, "[t]he complaint's tort claims against Park Ranger Telles are subject to dismissal in that he is an improper defendant under the FTCA"); Crump v. SSA, 2008 U.S. Dist. LEXIS 73646, *8 (E.D. Cal. Aug. 14, 2008) (holding that plaintiff's FTCA claim against the Social Security Administration should be dismissed because the United States is the only proper defendant, and "the agency's sovereign immunity has not been waived"); Nero v. Ives, 2014 U.S. Dist. LEXIS 92754, *19 (C.D. Cal. May 27, 2014) (dismissal appropriate where "the federal employee defendants, including the DOE defendant BOP agents, are not proper parties to the tort claims permissible under the FTCA"); Freeman v. United States, 2014 U.S. Dist. LEXIS 37801, *14-15 (N.D. Cal. Mar. 19, 2014) (dismissing with prejudice "FTCA claims against the VA Medical Center, Does 1-100, " and several individual doctors because "[i]t is well settled that the United States is the only proper defendant in an FTCA action"); Hennington v. FBI, 2009 U.S. Dist. LEXIS 1189, * 5-6 (S.D. Cal. Jan. 7, 2009) (holding that "to the extent Plaintiff is asserting a tort claim against Defendant FBI, the FBI is not a proper defendant.... [T]he United States is the only proper defendant for claims arising under the FTCA.").
Likewise, this Court concludes that grounds exist for immediate dismissal of Heine's proposed new FTCA claims against the Defendants and will deny leave to amend. Therefore, allowing Plaintiff leave to amend his complaint as to Defendants - who are not the United States - would be futile because absence of subject matter jurisdiction is a legal defect. Although FTCA claims can arise from the acts or omissions of United States agencies (28 U.S.C. § 2671), an agency itself cannot be sued under the FTCA. See Shelton v. United States Customs Service, 565 F.2d 1140, 1141 (9th Cir. 1977) ("It is well established that federal agencies are not subject to suit eo nomine unless so authorized by Congress in explicit language."); Craft, 157 F.3d at 706 ("an agency itself cannot be sued under the FTCA"). The FTCA provides that the ...